Fair comment on a matter of public interest is not actionable

SUPREME COURT OF NIGERIA

(KEKERE-EKUN; GARBA; OGUNWUMIJU; SAULAWA; JAURO, JJ.SC)

Dr. Jeremiah O. Abalaka (Appellant) commenced proceedings against Prof. Ibironke Akinsete, Dr. Tim Menakaya and Auwalu Mohammed Farouk (1st – 3rd Respondent) claiming that the three Respondents defamed his person in the general eyes of the public and claimed jointly and severally against the Respondents the sum of ₦500 Million Naira as damages for libel and slander; perpetual injunction restraining the Respondents their servants or privies howsoever defined, from further publishing such defamatory information of and concerning him and his vaccines; and an apology from the Respondents.

At the trial court, the Appellant testified and also called four witnesses. The 2nd and 3rd Respondents never filed any statement of defence and none of the Respondents testified or called any witness. The trial court delivered its judgment against the Appellant. Dissatisfied with the judgment of the trial court, the Appellant appealed to the Court of Appeal. The Court of Appeal in its judgment upheld the judgment of the trial court and dismissed the appeal.

Further aggrieved by the Court of Appeal’s decision, the Appellant appealed to the Supreme Court. At the Supreme Court, a sole issue was distilled for determination: Whether the concurrent findings of the lower court and trial court are liable to be set aside by this court.

ARGUMENTS

In arguing this issue, learned counsel for the Appellant contended that the judgment of the trial court was flawed when it held that the onus was on the Appellant to prove that the statement of the 3rd Respondent that the cure for HIV developed by the Appellant is not effective and that the Appellant and all other persons who paraded themselves as having found the cure to HIV are liars and cheats. Counsel argued that the court below not only treated the words it credited to the 3rd Respondent as if he testified, but the learned Justices of the court below also believed him and therefore concluded that a burden of proof was cast upon the Appellant which he failed to discharge. Learned counsel argued that the Appellant did indeed prove that he discovered a cure for HIV and that the trial court put up a defence for the 3rd Respondent thereby descending into the arena. Learned counsel submitted that the learned trial judge himself raised the defence of justification and fair comment and resolved them in favour of the 3rd Respondent who never filed a statement of defence not to talk of raising the defence of justification and fair comment formally.

Counsel for the 1st Respondent in response, listed the ingredients that must be proved in an action for defamation and argued that whether a defendant adduces or does not adduce any evidence at the trial, the fundamental and primary burden which the law at the outset places on a plaintiff who wishes to succeed in his claim remains. Counsel submitted that the Appellant never proved or led evidence that he cured anyone and neither was he able to cure the 3rd Respondent and therefore failed to prove that the 3rd Respondent defamed him by saying untrue words. Counsel argued that the televised video clip was before the court and was evaluated by the trial court in coming to its decision. Therefore, the basis of the allegation of the Judge being biased is considered unreasonable in the eye of a reasonable man.

The 2nd Respondent’s counsel in his brief stated that the 2nd Respondent neither mentioned the Appellant’s name nor made reference to anything the Appellant had done during the interview conference and that no evidence has been led to prove his involvement with the cause of action. Counsel argued that the principle of law in defamation is that the Appellant in the instant case must establish the falsity or lack of accuracy of the so-called words complained of Counsel submitted that the words complained about by the Appellant seemed not to be untrue as the statement of the 3rd Respondent stated his predicament.

Learned counsel for the 3rd Respondent argued that the Appellant had failed to discharge the burden that has been placed upon him as plaintiff in an action for defamation and that where a plaintiff fails to prove his case, the defendant will not even be called upon to enter his defence as the defendant will have nothing to answer.

DECISION OF THE COURT